milestone reached in 2001 water lawsuits 032715

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Milestone reached in 2001 water lawsuits. Cases could be decided before 2016

by LACEY JARRELL, Herald and News 3/27/15

Two court cases against the federal government — both more than a decade in the making — reached a major milestone this week.

The suits allege that the United States must compensate irrigators for shutting off water to the Klamath Project in 2001 and instead, sending it downstream. The cases were filed after the U.S. Bureau of Reclamation made the call to divert water only to the Klamath River. The decision was based on two conflicting biological opinions meant to protect species on both sides of the California-Oregon border.

The water shutoffs brought Basin agriculture to a standstill and caused more than 12,000 farmers and ag supporters to rally in downtown Klamath Falls for the historic Bucket Brigade.

Since then, the cases have been quietly working their way through the judicial system. On Wednesday, the court filed summary reports for both, signaling the end of the discovery process and the potential for reaching the finish line.

“They will provide a roadmap to trial,” said Bill Ganong, general counsel for the Klamath Irrigation District (KID).

Counsel for the U.S. could not be reached for comment.

The suits allege that the 2001 water shutoffs violated the Fifth Amendment takings law, which requires government entities to compensate property owners when their property is taken for public use.

The lawsuits maintain the federal government illegally shut off water for irrigators, making it a “take” that requires financial compensation.

According to Ganong, expert witnesses have valued the water between $35 and $104 per acrefoot. But, he added, the cases isn’t intended to be a moneymaker.

“It’s not going to be a great deal of money — nothing compared to what the loss was,” Ganong said. “The idea is to try to establish a principle for the future and help maintain the viability of irrigated agriculture in the Project.”

Irrigators’ rights

KID is the lead defendant in the first suit, which was filed in April 2001. Twenty-four plaintiffs, including KID, are named in the case: 10 individual landowners and 14 water districts.

According to Ganong, much of this suit hinges on whether irrigation districts have a right to the water that was considered a taking. He explained that Fifth Amendment rights apply only to those who use a resource.

“What is in question is whether the districts can file on behalf of the landowners,” he said.

John Anderson Farms is the lead plaintiff in the second takings case against the U.S. Twenty other landowners are named in the suit.

Early in the court process, the plaintiffs requested to submit their cases together as a classaction lawsuit on behalf of all 1,400 Klamath irrigators. The request was denied. Documents state that instead, the court plans to hear individual cases with the “hopes of bringing at least some of the issues in this case to completion” before deciding whether a class-action filing is appropriate.

According to the summary report, the U.S. is prepared to file motion to dismiss claims for a class-action suit by April 8.

If a class-action filing is approved, anyone entitled to — but who did not receive — water from Upper Klamath Lake or the Klamath River in 2001 will be able to file a claim, according to Ganong. But even if a classaction is approved, finding Basin residents impacted by the 2001 controversy will be challenging because many have moved on or passed away.

“We are losing our knowledge,” he said.

Consolidation possible

KID and Anderson Farms have requested their cases be tried before 2016. The U.S. has proposed allocating at least one more year for briefing and submitting motions.

Ganong said the next step is for Francis Allegra, the U.S. Court of Federal Claims judge overseeing the cases, to schedule a status conference, which typically occurs 30 days after summary reports are filed. After the conference, Allegra can schedule pre-trial proceedings, if he decides the cases are ready to move forward.

Plaintiffs have requested for the trials to take place in Washington, D.C., and for the KID and Anderson Farms suits to be consolidated.

According to the summary reports, the U.S. position is that most of the claims can be determined by a motion to dismiss or a motion for summary judgment, meaning there are no major facts left to dispute and the judge can rule without going through a trial.

ljarrell@heraldandnews.com ; @LMJatHandN

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